“Angering Conservatives and Liberals, Chief Justice John Roberts Defends Steady Restraint”

Please read this insightful piece from Adam Liptak in the New York Times.*

download (3)The Chief Justice is fast becoming my hero.

He may well be the best Chief Justice since Chief Justice John Marshall.





* H/T Howard Bashman at How Appealing.

17 responses

  1. That’s because he’s really smart and humble. No biting sarcasm in anything he writes. He can disagree agreeably, and that forces the reader to give what he’s saying deep consideration.

    But on a more important note I’m a trifle disappointed to that you have missed a once in a blue moon opportunity to make a lasting statement on this blog. You could have posted a selfie with you wearing a bag over your head (paper with appropriate air hole so) with a big bowl of fortune cookies in front of you.

    Now that would be funny- and pretty darn snarky.

  2. I’m sorry, but he is nowhere close to C.J. Marshall. C.J. Taft comes to mind as better (for his dissent in Adkins v. Children’s Hosp. for example, supporting overruling Lochner). For that matter, C.J. Warren was much better than C.J. Roberts.

  3. Mine is Thurgood Marshall. Most appellate judges don’t give a rat’s ass about the little guy, and neither does Roberts. “The Great Dissenter” did, and his dissents in particular reflect it.

    CS Lewis once said that “character” is what you do what no one is watching. Federal judges don’t often possess the character it requires to dissent. Thurgood Marshall was an exception for the ages.

  4. Justice Thomas who admires Stevens as a person said that Stevens weakness as a justice was that Stevens had too much sympathy for the little guy. Says a lot about both of them. ,Harlan the younger was my favorite as a justice. As for CJ its too early on Roberts though with his views on the commerce clause perhaps he will spark a Taney resurgence. On Taft I am reminded of What Holmes said, “he was such a gentleman he got up on the street car and gave his seat to two ladies.’ As VP Taft was so fat they had to put in a special elevator on the Senate side of the Capitol. It may still be there. Warren like Marshall will continue to suffer from law prof snobbery, but getting a unanimous Court in Brow must rank as a high point of legal statesmanship.

  5. Under the Constitution, judges have the power to say what the law is . . . except when they don’t like what the law is. John Roberts is not an umpire, but a swaggering dictator. He is a lying piece of scum.

    I guess that that is what makes him a judge’s judge.

  6. Hi Judge, glad to hear your comment. I was just talking with a friend this morning that I thought Roberts made the right call on the ACA case. When the first one came around, I thought back to CJ Hughes in the ’30s and the very real prospect the SCOTUS would have lost all legitimacy had it constantly opposed FDR’s agenda. There isn’t much doubt in my mind the judiciary is a political branch (most of the best politicians I know are judges), but striking a balance between both sides of political aisle helps keep out some of the worst vinegar from the debate.

    P.S. You ought to look up Morrison Waite’s biography by Bruce Trimble if you ever get the chance. The fellow literally worked himself to death.

  7. Judge,

    Your insights are spot on. The Court is a “political branch” in the sense that “law” is as Holmes described it. A reflection of our experiences many of which have political consequences. Moreover, the mediation function regarding disputes between the Congress and the Executive and the States and the Federal Government and the People and their respective Governments calls upon the Court to make choices that appear political to folks who are not legally trained. But the word “political” is applicable to the Court only in these circumstances where the Court must decide a question that is inherently political in nature.

    All the best.


  8. The Court’s decisions ARE political, which is what drains so much legitimacy from the system. I want courts to be courts, not goddamned political weather-vanes. To the legally trained, courts make political decisions, using often-tortured precedent and fractured facts in a transparent attempt to coat them in a thin veneer of legitimacy. Even judges admit this, so don’t even bother trying to deny it.

    The SSM cases are a painful case in point. As Judge Batallion’s opinion demonstrates, the right answer was inevitable and easy to get to. Scalia knew the debate was over when he lost Lawrence. And if SCOTUS had taken that case, the matter would have been settled when it should have been. Millions were denied rights for a decade because judges chose not to do their jobs.

    After literally 100 court decisions (I counted them in the Appendix), the question was settled. You didn’t have more than four dissenters in the entire system. Not even in the arch-conservative Tenth Circuit. There was no reason why they couldn’t have taken the appeals last Term, and their refusal wasted more judicial resources, depriving people of their constitutional rights in the process.

    Roberts’s SSM dissent was infuriatingly dishonest. He tells us that the judicial power is the power to decide what the law is, not write it. That has been true for five hundred years. Then, why have they exceeded their authority so often, and why have they let so many lower courts indulge without protest? Let us be honest: he lied, because the truth isn’t politically palatable. Just as he testi-lied in his confirmation hearing. He will say whatever it takes to achieve the outcome he wants.

    And why wasn’t the CA6 appellate decision overturned per curiam, without a hearing? Baker v. Nelson had no residual potency. We all know the answer: Our courts are political, and the RATS wing of the Court wanted an opportunity to pander to their base.

    The FDR problem the first Justice Roberts faced explains Roberts’s ACA decisions. If the RATS wing had been successful in its desire to invalidate Dolecare a/k/a Obamacare, it would have squandered what little legitimacy it still has. So, he made the switch-in-time, like his namesake.

  9. Annonymous You see the new in what has always been,as Mr Dooley noted” The Constitution may not follow the flag but the Supreme Court follows the election returns.”Fred Rodell noted that with life tenure and long survival those elections may have been held a long time ago.Where in the world are these courts on myth untouched by politics, not in Ottawa nor London nor Strasbourg.

  10. Not being a lawyer, but once having served politicians of both parties who have very different views on this issue, I agree with SCOTUS’s dilatory, and yes political, strategy to not take up SSM (or as we now like to call it “marriage”) until it was forced to do so. The organic nature of the change of hearts and minds across America in the last very few years hopefully, as Justice GInsberg has noted, will permit us to avoid an analogous backlash like Roe brought forth in 1973. To a legal outsider, Roberts is akin to Pope Francis: I don’t agree with his attachment to antiquated dogma but I know he has a heart. Thus I’d never put him the same category with the Alito, Scalia or Thomas.

  11. De gustibus non es disputandum,* but better than Warren, who got nine disparate personalities to agree on the most important decision of the twentieth century, Brown v. Board of Education? Not hardly. Better than Hughes, who presided over the court in the fractious 1930s? No. Better than Taft? Dubious.

    Roberts, remember, was part of the majority in the abomination of Citizens United. He wrote that the way to stop racial discrimination was to stop discriminating on the basis of race, and then used that to eviscerate the Voting Rights Act. Those are two–and not the only ones–huge blots on his record.

    * Which the longtime correspondent Sander Vanocur defined as “I have an aunt who likes Uneeda Biscuits.”

  12. It is a question of degree. It is disingenuous to say that the judicial power is limited to declaring the law in one breath, and rewriting the Constitution in the next. SCOTUS has gone so far over the line so often that it is undeserving of our respect. With the Judge, my cynicism regarding that institution has metastasized.

  13. Been so long since I have been accused of being disingenuos instead of over complicated that my day is made.

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